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MAINE SUPREME JUDICIAL COURT Reporter of DecisionsDecision: 2011 ME 15Docket: Cum-09-545Submitted On Briefs: July 7, 2010Decided: January 25, 2011Panel: SAUFLEY, C.J., and LEVY, SILVER, GORMAN, and JABAR, JJ. LORI HANDRAHAN v. IGOR MALENKOJABAR, J. [¶1] Following the testimony of two expert witnesses in support of LoriHandrahan’s complaint for protection from abuse filed against her ex-husband,Igor Malenko,1 on behalf of the parties’ minor child, the District Court (Portland,Moskowitz, J.) entered a judgment in favor of Malenko. Handrahan asks us toconclude that the expert witness testimony compelled a finding that Malenko wasabusing the child. Because we conclude that the trial court’s evaluation of theevidence was not clearly erroneous, we affirm the judgment. I. CASE HISTORY [¶2] In July 2009, two individuals made reports to the Department of Healthand Human Services that Igor Malenko was sexually abusing his 1 In September 2009, we affirmed the parties’ divorce judgment, with one modification not relevanthere. See Malenko v. Handrahan, 2009 ME 96, 979 A.2d 1269.

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2two-year-and-eight-month-old daughter. The Department began an investigationand referred the child to the Spurwink Child Abuse Program for a sex abuseevaluation. [¶3] As part of the Spurwink evaluation, Dr. Lawrence Ricci performed aphysical examination of the child and found no signs of any “genital or rectaltrauma, either acute or prior.” Ricci then consulted with the Department; counselfor each parent; and Joyce Wientzen, L.C.S.W., who was the co-director ofSpurwink, about proceeding with a forensic interview, to which they unanimouslyagreed. Wientzen conducted the forensic interview by reading backgroundinformation, speaking to various individuals, including those who had heard thechild make statements suggestive of abuse, and meeting with the child twice. [¶4] When meeting with the child, Wientzen noted that the child could notrecite the interview rules, demonstrate resistance to suggestion, or participate inWientzen’s attempts to assess the child’s understanding of the difference betweenthe truth and a lie. During the second interview, the child disclosed sexual abuseby her father. The child’s disclosure to Wientzen was consistent with what she hadtold others. [¶5] Following their medical and forensic evaluations, Ricci and Wientzenpresented the results to a team made up of other Spurwink interviewers, apsychologist, and a nurse practitioner. The team collaborated to place the case into

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3one of four categories: (1) strong evidence of abuse, (2) moderate evidence ofabuse, (3) do not know, or (4) no evidence of abuse. [¶6] The team fit this case into the category of moderate evidence of sexualabuse of the child by Malenko and recommended that the child have nounsupervised contact with him. In reaching its conclusion, the team was swayedby the specificity and consistency of the child’s statements recounting the abuse.They did consider aspects that weakened the likelihood of abuse, including that thechild did not offer many surrounding details; was very young; made the disclosurein the context of a custody dispute; and had been questioned previously about thisabuse by Handrahan and others, which could have increased the possibility ofsuggestion. However, the team felt that the child’s statements “could not beexplained merely by suggestive questioning, or . . . by some alternate form oftouching, such as hygienic touching.” [¶7] In August 2009, Handrahan filed a complaint for protection from abuseon behalf of her daughter. The District Court (Ellsworth, Staples, J.) entered atemporary protection from abuse order and transferred venue to Portland. [¶8] Before the protection from abuse proceedings began, the court(Moskowitz, J.) granted in limine motions made by both parties, includingMalenko’s motion, based on State v. Black, 537 A.2d 1154 (Me. 1988), to exclude

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4any expert opinion testimony regarding the truthfulness of any disclosure made bythe child. [¶9] Neither Handrahan nor two other individuals who claimed to haveheard the child’s disclosures were present at the hearing. Handrahan reliedexclusively on Ricci and Wientzen, who testified about their examination methodsand opined that there was “moderate evidence” of sexual abuse by Malenko. Atthe conclusion of the direct examination of these witnesses, Handrahan sought toadmit Ricci’s medical and Wientzen’s forensic examination reports as businessrecords pursuant to M.R. Evid. 803(6). Malenko objected, arguing that thestatements of absent witnesses, which were quoted or referenced in both reports,were double hearsay and should be redacted. The court admitted both reportswithout redaction. [¶10] At the conclusion of the hearing, the court found that Handrahan hadnot proved abuse by a preponderance of the evidence. See 19-A M.R.S. § 4006(1)(2009). The court distinguished judicial fact-finding from that of “examiners andmedical professionals.” The court noted that, although the child’s statements werethe crux of the Spurwink team’s opinion that there was moderate evidence ofabuse, the court was hesitant to assign great weight to the statements of a childwho was unable to distinguish between the truth and a lie. In addition, the courtnoted that it, unlike the examiners, was required to consider “bias, motive to

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5fabricate, and other circumstantial evidence” in order to determine what had or hadnot been proved. In sum, the court determined that Handrahan had presented“extremely precarious evidence of an extremely serious allegation.” II. DISCUSSION [¶11] Handrahan appeals from the court’s judgment, arguing that the court’sdetermination that she had failed to meet her burden of proof was based on itsfailure to apply the protection from abuse statutes, 19-A M.R.S. §§ 4001-4014(2009), 2 liberally, as required by section 4001, and on erroneous fact-finding. [¶12] We agree with Handrahan that the protection from abuse statutes mustbe liberally construed and applied to promote their underlying purposes, whichinclude (1) recognizing the serious and detrimental consequences of domesticabuse on children, and (2) providing the victims of domestic abuse withexpeditious and effective protection. Id. § 4001(1), (2). Although the statutesmust be construed liberally, it is still necessary for the moving party to prove itscase by a preponderance of the evidence, see id. § 4006(1), through testimony andexhibits that are admissible under the rules of evidence, see M.R. Evid. 101, 1101.It is not inconsistent with a liberal construction of the statutes for a court to 2 The protection from abuse statutes have since been amended, though not in any way that affects thepresent case. P.L. 2009, ch. 555, §§ 4-7 (effective July 12, 2010) (codified at 19-A M.R.S. §§ 4006(6),4007(6) (2010)).

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6conclude, after carefully evaluating the evidence, that the moving party has not metits burden of proof. [¶13] Additionally, we discern no error in the court’s factual findings. Foran appellant who had the burden of proof at trial to prevail on a sufficiency of theevidence challenge on appeal, that party must demonstrate that a contrary findingwas compelled by the evidence. Efstathiou v. Efstathiou, 2009 ME 107, ¶ 10,982 A.2d 339, 342. We review factual findings for clear error and will affirm atrial court’s findings if they are supported by competent evidence in the record,“even if the evidence might support alternative findings of fact.” Preston v. Tracy,2008 ME 34, ¶ 10, 942 A.2d 718, 720 (quotation marks omitted). [¶14] In our prior decisions, we have emphasized that determining whatweight to give expert testimony is exclusively within the province of thefact-finder. See, e.g., Rinehart v. Schubel, 2002 ME 53, ¶ 9, 794 A.2d 73, 76.A court is not required to “believe the testimony of any particular witness, expertor otherwise,” id. (quotation marks omitted), even when the witness’s testimony isuncontradicted, Dionne v. LeClerc, 2006 ME 34, ¶ 15, 896 A.2d 923, 929.Furthermore, “[w]here the facts and assumptions underlying expert opinions areamply exposed during their testimony in the course of trial, the fact-finder isentitled to draw his own ultimate conclusions.” State v. Ellingwood, 409 A.2d 641,644 (Me. 1979).

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7 [¶15] Among the evidence admitted and considered by the court wasWientzen’s testimony and report repeating the child’s allegation of abuse, and theSpurwink team’s conclusion, testified to by Ricci, that there was “moderateevidence” of abuse. Initially, we recognize that some of this evidence may nothave been properly admitted. However, because Handrahan offered this evidenceto support allegations that the court determined she failed to prove, any error inadmitting the evidence was harmless. See M.R. Civ. P. 61. [¶16] Wientzen’s report was offered as a business record pursuant to M.R.Evid. 803(6), but the court admitted the child’s statements to Wientzen pursuant toM.R. Evid. 803(4).3 Rule 803(4) allows hearsay statements “made for purposes ofmedical diagnosis or treatment and describing . . . the inception or generalcharacter of the cause or external source thereof insofar as reasonably pertinent todiagnosis or treatment.” Here, Wientzen conducted a forensic interview of thechild in her capacity as co-director of the Spurwink Child Abuse Program, and onthis record it is not clear that the child’s statements to Wientzen were made for 3 Wientzen’s report contained multiple levels of hearsay and could not be admitted as a businessrecord pursuant to M.R. Evid. 803(6) without redacting the hearsay statements that did not fall within anexception to the hearsay rule. See M.R. Evid. 805 (authorizing the admission of hearsay within hearsay ifboth statements conform to the requirements of an exception to the hearsay rule); see also In re Soriah B.,2010 ME 130, ¶ 19, 8 A.3d 1256, 1261-62 (explaining that M.R. Evid. 703 does not render admissiblehearsay forming the basis of an expert’s opinion).

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8purposes of medical diagnosis or treatment.4 But cf. Ames v. Ames, 2003 ME 60,¶ 16, 822 A.2d 1201, 1206 (explaining that a statement that is otherwise admissibleunder Rule 803(4) is not disqualified because it is made during an examination thatproves helpful to a party’s case). [¶17] There was also a serious question as to the admissibility of theexperts’ opinion that there was “moderate evidence” of abuse. Under ourprecedent, unless there is a demonstration of scientific reliability, an expert cannottestify that a child is a victim of sexual abuse. Black, 537 A.2d at 1156-57 & n.1;accord State v. York, 564 A.2d 389, 390-91 (Me. 1989). Without a showing ofscientific reliability under the standard set out in State v. Williams, 388 A.2d 500,504 (Me. 1978), Ricci rendered an opinion that the child had been sexually abusedby commenting on the evidence presented to the court. He opined that theevidence indicated moderate evidence of sexual abuse of the child by Malenko.This testimony could very easily have been excluded as improperly rendering anopinion as to the occurrence of sexual abuse or as improperly commenting on thecredibility of the victim, see Black, 537 A.2d at 1156-57 & n.1. [¶18] Although there were serious questions surrounding the admissibilityof this evidence, it was admitted and we must assume that the court considered it. 4 Because this was not a criminal prosecution, we need not address potential Confrontation Clauseconcerns that could arise from the admission of this type of testimony.

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9The court did not err in its evaluation of the evidence presented. The court was notrequired to accept the experts’ characterization of the evidence, and its refusal toadopt their opinion does not constitute clear error. [¶19] In its analysis, the court noted that the sole evidence of abuse was thechild’s statement made to Wientzen during the course of Wientzen’s forensicinterview. As noted above, the court admitted the child’s statement pursuant toM.R. Evid. 803(4) concerning statements made for purposes of medical diagnosisor treatment. The court correctly observed that “the linchpin of that rule is thestrong motivation of a patient to be entirely honest with [her] physician forpurposes of medical diagnosis and treatment,” and concluded that the child was notshown to have that motivation. [¶20] The court was justified in this assessment of the reliability of thechild’s out-of-court statement. The child was two years and eight months old, andRicci testified that forensic interviews ordinarily are not conducted with childrenunder the age of thirty-six months because children that young lack languagedevelopment and the ability to perceive and report events. On this record, thecourt was not compelled to find that the allegation of abuse had been proved by apreponderance of the evidence. Because the evidence supports the court’sjudgment, we affirm.